Clements v Thurlow - [2012] NZHC 2449

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2725 [2012] NZHC 2449

IN THE MATTER OF the enforcement of a Deed of Settlement

AND IN THE MATTER OF the sale of 8 Blundell Place, Birkenhead, Auckland, by a co-owner

BETWEEN LAYLA KATHLEEN CLEMENTS Plaintiff

ANDCLIFFORD FRANK THURLOW Defendant

Hearing: On the papers

Counsel: R S Pidgeon for Plaintiff
Defendant in person

Judgment: 21 September 2012

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 21 September 2012 at 4:30pm
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar

Solicitors:
Pidgeon Law (R S Pidgeon) P O Box 6535 Auckland 1141, for Plaintiff
Email: Richard@pidgeonlaw.co.nz / Shannon@pidgeonlaw.co.nz

Copy for:
C F Thurlow, 259 Lower Higham Road, Gravesend, Kent DA12 2NP, United Kingdom.
Email: cfthurlow@aol.com

Case Officer: Mel.Libre@justice.govt.nz

CLEMENTS V THURLOW HC AK CIV-2012-404-2725 [21 September 2012]

Introduction

[1] In June 2011 Mr Thurlow and Ms Clements signed a deed settling a proceeding which Mr Thurlow had brought against Ms Clements. Under the deed Ms Clements was to transfer her one-tenth interest in a property at 8 Blundell Place, Birkenhead, Auckland, to Mr Thurlow, in consideration of the payment of $60,000 to be paid to the trust account of her lawyers. Mr Thurlow already held the remaining
90 per cent interest in the property. Mr Thurlow also agreed to pay an electrical bill and acknowledged that he was responsible for all outgoings on the property since Ms Clements had vacated in 2009. Ms Clements was to use the proceeds of settlement to clear a statutory land charge lodged by the Legal Services Agency. Under clause 7, the settlement was conditional on the parties entering into a settlement agreement with a third party, on terms that the third party would pay a sum of costs to Mr Thurlow and not make any claim against Ms Clements for contribution towards that payment. The deed was in full and final settlement of all issues and differences between them, whether raised in the proceedings or otherwise. Each party agreed to pay their own costs. They also agreed to execute all documents necessary to give effect to the deed. They acknowledged that they had been independently advised before signing.

[2] Ms Clements brings this proceeding to enforce the deed. She seeks specific performance of the provisions of clause 1 for transferring her interest in the property and for the payment of the $60,000. In addition, she also seeks orders for the sale of the property under subpart 5, Part 6 of the Property Law Act 2007 for the division of property among co-owners.

[3] While Ms Clements lives in New Zealand, Mr Thurlow lives in England. He objects to Ms Clements’ claim against him on the deed of June 2011 being brought in New Zealand. This decision is about his objection to this court hearing the case. Although Ms Clements has applied for summary judgment, this is not a decision on her summary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 2449
Decision Date: 21 September 2012

CaseChat Overview and Summary

In Clements v Thurlow, the High Court considered whether it had jurisdiction to hear Ms Clements' claim for specific performance of a deed of settlement and for the sale of property between co-owners. Mr Thurlow, who lives in England, objected to the New Zealand court hearing the case. The court found that Mr Thurlow had submitted to the jurisdiction of the New Zealand court by contesting the merits of Ms Clements' claim without objecting to jurisdiction. The court also found that it was appropriate to allow Mr Thurlow to reconsider his submission to jurisdiction, given that he had raised the issue promptly and was unrepresented. The court then considered whether Ms Clements had established a good arguable case that her claims fell within the circumstances in which service of process may be effected out of New Zealand without leave. The court found that Ms Clements' first cause of action for specific performance fell within the circumstances of paragraph (b) of r 6.27, while her second cause of action for the sale of property did not fall within any of the paragraphs of r 6.27. However, the court found that it was appropriate to hear both causes of action in New Zealand, given that there was a serious issue to be tried on the merits and New Zealand was the appropriate forum for the trial. The court also found that it was in the interests of justice to excuse Ms Clements' failure to apply for leave for the second cause of action, given that the claim could only be heard in New Zealand.

Orders